Introduction
The Kedar Nath ruling[1] of the Supreme Court (‘SC’), while upholding the constitutional validity of Section 124A (sedition) of the Indian Penal Code, 1860, limited the scope of the provision. It was held that for an offence of sedition to be made, there must be incitement to violence or the act/ expression must have a tendency to cause public disorder. However, a blatant misuse of this provision by law enforcement agencies can be seen in the present times, as it is being used to curtail free speech and expression of individuals. On the contrary, a severely lax attitude of the executive can be seen with regard to hate crimes, despite the surge in their instances in recent years. This article seeks to highlight and address the dichotomy in response of the enforcement authorities between these two classes of crimes that disrupt the peace and corrode the social ethos of the nation.
Hate Crime and Executive “Inaction”
The Organisation for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights, in their practical guide on Hate Crime laws, define a hate crime as a criminal offence with a bias motive. A hate crime can be a murder, a physical assault, property damage or any other criminal offence. A bias motive means that the perpetrator of the crime chose their target on the basis of some protected characteristic, be it race, ethnicity, religion, caste or any other such similar category. In India, official statistics on hate crime can be difficult to corroborate, because they are some times not published. Amnesty International, however, found that from 2015 to 2019, there were 619 hate crimes against Dalits, 196 instances of hate crime against Muslims, 31 such crimes against Adivasis, 29 instances against Transgender people, and 18 such crimes against Christians. Amnesty’s Halt The Hate program documents crimes against Dalits, Muslims, Adivasis and Transgender people in India. Its website is no longer accessible from India.
Such statistics are not unfamiliar. However, the important question that must be asked is whether the police are responding adequately to these crimes. M Mohsin Alam Bhat, Vidisha Bajaj and Sanjana Arvind Kumar’s 2020 paper, ‘The Crime Vanishes: Mob Lynching, Hate Crime and Police Discretion in India’ attempts to answer this question. What is clearly understood through this paper is that there is a structural corruption within the police force that aims at suppressing crimes that target Muslims. Bhat points out that police officers are acutely aware of communal tensions within the localities where they work[2]. The places where the interviews were taken had been sites of mob lynchings (usually cattle related). It seems however, that the police hesitates to frame these hate crimes (often directed at Muslims) as such, chalking them up to “mob violence” caused by “heightened emotions”. The interview with the Station House Officer at Palwal was especially telling, as he made an attempt to justify vigilante violence against alleged cow smugglers as “self defense”, comparing the aforementioned to “Pakistani terrorists”. The Status of Policing in India Report, 2019 found that 35% of police officers believed that mob violence was a somewhat or largely natural reaction to alleged cow smuggling.
The murder of Pehlu Khan by vigilante gau rakshaks and the murder of Junaid Khan, which was similarly communally motivated are two incidents in the country’s recent memory that garnered a lot of attention in the media. As for the first case, the appeal is still pending in a High Court after the trial court acquitted the main accused, despite the fact there was crucial video evidence, which was not examined on technical grounds. As for the second case, the accused persons have been out on bail since 2018. The SC, in its adjudication in Tehseen S Poonawalla v. Union of India and Ors,[3] responded to the public anger following these incidents, by creating a number of guidelines for the police to deal with hate crime. These include the prompt filing of FIRs, the creation of a task force by a high-level nodal officer in each district, as well as filing hate crime cases under Section 153A of the Indian Penal Code, which criminalises the promotion of enmity between different groups of people on grounds of religion, race, place of birth, residence, language, etc. Bhat’s paper notes that compliance with these guidelines has been abysmal. Officers interviewed by the Clinic did not even know of the existence of such guidelines.
The role of the police as enabling factors in communally motivated hate crimes goes beyond ignorance and tacit support. The paper takes the case of one Shahrukh Khan, a man who was murdered, presumably on the suspicion of cattle theft, by a mob. The paper notes the process by which the case against the main accused was significantly subverted without explicit illegality. The police removed any traces of the violence being of the nature of a hate crime. With the witnesses also being charged as the accused, the identities of those who might have otherwise corroborated evidence against the main accused are no longer secret. This chapter in the paper ends, observing, “with the impending failure of the case, the crime of Shahrukh’s death would vanish within police files.”
The cases mentioned are not exceptions. They represent a society-wide attitude towards bigoted violence against oppressed groups. The police have not only enabled but actively participated in this violence. In Hashimpura, 1987, a number of Provincial Armed Constabulary murdered 42 Muslims. There were no convictions until much later, because pressure from the Rajiv Gandhi administration led to the cases being withdrawn. The reason for the lax attitude of the State towards hate crime is not explained by oversight, but an active persecution of minorities by police forces and members of the political executive. Even those with ministerial positions have made several comments threatening Muslims which fall foul of Section 153A (none of which shall be reproduced in this article).
Sedition and Executive Action
While the approach of the government and the police authorities has been grossly inadequate in dealing with cases relating to hate crimes in India, the sedition provision under Section 124 A of the Penal Code, on the contrary, has been used arbitrarily by the executive, by making use of the vague and overly broad terms of their provisions. As per the report published by the National Crime Records Bureau (‘NCRB’), there has been an increase of 165% in the number of cases registered under Section 124A of the Indian Penal Code, 1860, during the same period.
It is for this reason that the debate on the constitutionality of the sedition law in India has resurfaced. More recently, petitions have been filed before the Hon’ble Supreme Court for striking down Section 124A, on grounds of being violative of the fundamental rights of the citizens. Due to the vagueness of the provision because of the usage of terms such as ‘contempt’, ‘hatred’ and ‘disaffection’, that do not have a defined ambit, virtually any expression against a government action can be brought within the ambit of the section. This is because, here, the authorities would have wide discretion to determine what would constitute a seditious intent or an act or expression that may have a tendency to disrupt public order. In the case of Shreya Singhal v. Union of India,[4] it was held by the SC that for an offence that is vaguely described and there are no clear standards or guidelines in place for the citizens, executive authorities, and the courts to adjudicate these cases, then such a provision should be declared void on grounds of being arbitrary in nature.
While it is true that the application of the provision was limited by the Kedar Nath Singh[5] judgement, the principles laid down remain unknown to the police, who continue to register charges against citizens and thereby truncate their constitutional rights. This is in violation of the ruling of the SC in the case of Common Cause v. Union of India,[6] where it was held that the law enforcement agencies would be obligated to follow the principles laid down in the Kedar Nath ruling for a case relating to Section 124A of the Penal Code, and not invoke the provision for instances of criticism of the government. It would also be pertinent to note here that the conviction rates (‘CVR’) for such crimes is appalling. As per the NCRB report, of the 93 cases that were filed in 2019, the CVR stood at a mere 3.3%. This stands as proof that there may be no evidence available for the crime of sedition to begin with and highlights how the provision is being heavily abused by the executive authorities. Such arbitrary action can also be seen from the recent Vinod Dua[7] case, where an FIR was filed against a journalist on the grounds that he spread false rumors which would induce them to commit an offence against the State or public tranquillity. The SC quashed it on the ground that the expression was, at best, in nature of disapprobation and an offence under section 124A was not made out.
In recent years, this provision has been used indiscriminately to implicate journalists, students and writers for criticizing the actions of the executive. Here, reference can be made to Disha Ravi, who was charged under this section for her alleged involvement in an online toolkit relating to the farmers’ protest in India. The police, in this case, claimed that this toolkit was seditious in nature as it would cause unrest and that she was associated with pro-Khalistan activists. It was observed that an offence of sedition was not made as there was no evidence that suggested a link between her actions and the violence that followed. This is not in line with the rulings of the SC that have held that detention on vague and arbitrary grounds is against spirit of the Indian Constitution[8] and that any such attempt to stifle any criticism against the government would lead to political censorship of the most ‘insidious and objectionable kind.’[9]
Conclusion
As is clear from the aforementioned discussions, the law is often subject to very selective application by the government. It is important to note that both kinds of crimes being discussed are covered under the Indian Penal Code. In fact, committing a hate crime punishable under Section 153A awards a greater maximum sentence of five years, as opposed to the three years maximum imprisonment under Section 124A. By all means, the murders, violence and bigotry punishable under S.153A are more heinous and more harmful than what constitutes sedition under S.124A. While Anurag Thakur, who incited mobs to shoot “traitors” preceding the 2020 Delhi Riots, is made the Minister of Information and Broadcasting by the Government, human rights activist Sudha Bhardhawaj languishes in jail for alleged connections to Naxalite violence in the Bhima-Koregaon case, charged with sedition among several other offences in the IPC. Digital Forensics firm Arsenal proved that evidence was planted against at least three of the accused in the aforementioned case. The fact that conviction rates are so low under sedition means that the police, far more often than not, are taking action against non-offences in these cases. It is worrying to see that the law can so easily be manipulated by those who are meant to be enforcing it. Though these situations of selective application may seem to be opposites, they are similar in an important respect. In both cases, the Supreme Court has been explicit in their interpretation of the law (though the Tehseen Poonawalla judgement does suffer from vagueness on some counts), and in both these cases, guidelines have been blatantly disregarded. This in itself brings up more concerns about the power of checks and balances. If the judiciary is supposed to hold the executive accountable, then the executive must respond adequately. A more responsible and democratic executive would listen to the Supreme Court. The executive has a duty under law to follow Supreme Court directions, else be held in contempt. The Supreme Court must take cognisance of the executive’s abysmal response to the guidelines in Tehseen Poonawalla. It does not help that the judgement in itself has no definition for hate crime and in different instances, refers to the crimes as “cow vigilantism”, “mob violence” or “lynching” without actually defining hate crime. There are few laws that specifically deal with hate crimes in India, like the SC/ST (Prevention of Atrocities) Act, 1989. Moreover, India is sorely lacking statistical data on Hate Crimes. Thus, there is a pressing need for overarching anti-hate crime legislation and laws that would require data collection on hate crimes, so as to solidify the guidelines of the Court and to ensure that such grave injustice is not caused under the guise of maintaining law and order.
[1] Kedar Nath Singh v. State of Bihar AIR 1962 SC 955.
[2] The officers interviewed were posted in several districts in Uttar Pradesh.
[3](2018) 6 SCC 72
[4] Shreya Singhal v. Union of India, 2015 AIR SC 1523.
[5] Kedar Nath Singh v. State of Bihar AIR 1962 SC 955.
[6] (2016) 15 SCC 269.
[7] Vinod Dua v. Union of India, 2021 SCC OnLine SC 414.
[8] Mohd Yusuf v. State of J&K, AIR 1979 SC 1925.
[9] R. Rajagopal v. State Of T.N., (1994) SCC 6 632.
This article on hate crime and sedition has been authored by Rishabh Chhabaria, Senior Editor, and Deb Ganapathy, Associate Editor at RSRR. This blog is a part of the RSRR Editor’s Column Series.